Gary Bradley v. W.A. Duncan, Warden

dissenting:

I respectfully dissent. The majority fails to adhere to our standard of review. The California courts made no factual error and no error of California law. Federal law does not, independently, require an entrapment instruction in a state-court criminal trial when there is insufficient evidence to support it as a matter of state law. Accordingly, I would reverse the district court’s conditional grant of habeas relief to Petitioner.

The Supreme Court of the United States has just chastised this court, in the strongest possible terms, for substituting, our judgment'for that of a state court on matters of federal law, including legal issues that involve an interpretation and application of facts. Woodford, v. Visciotti, — U.S. —, 123 S.Ct. 357 , 154 L.E,d.2d 279 (2002) (per curiam); Early v. Packer, — U.S. —, 123 S.Ct. 362 , 154 L.Ed.2d 263 (2002) (per curiam). We have even less justification for substituting our judgment for that of a state court on matters of its own state law. Indeed, we wholly lack authority to second-guess a. state, court on a question of state law. Yet that is precisely what the majority does here, in clear contravention of both AEDPA and the…

Opinion by Judge FERGUSON; Dissent by Judge GRABER.

*1094 OPINION

Warden William A. Duncan (“the State”) appeals the District Court’s conditional grant of Defendant/Petitioner Gary Bradley’s (“Bradley”) 28 U.S.C. § 2254 petition for a writ of habeas corpus challenging his conviction on the grounds that the state trial court’s refusal to instruct the jury on the defense of entrapment violated his federal due process rights. The District Court adopted the recommendations of the Magistrate Judge, who found that the refusal to instruct effected prejudicial constitutional error, and that the California appellate court’s denial of his claim was contrary to and involved an objectively unreasonable application of controlling federal law. We affirm the District Court’s conditional grant of habeas relief.

Defendant/Appellee Gary Bradley (“Bradley”) was arrested and charged with one count of selling cocaine in violation of California Health and Safety Code section 11352(a). Bradley’s only defense at trial was that he was entrapped by the police into committing the offense.

At the conclusion of trial, the state trial court instructed the jury on the defense of entrapment pursuant to the…

315 F.3d 1091 Gary BRADLEY, Petitioner-Appellee, v. W.A. DUNCAN, Warden, Respondent-Appellant. No. 01-55290. United States Court of Appeals, Ninth Circuit. Argued and Submitted February 14, 2002. Filed December 24, 2002. COPYRIGHT MATERIAL OMITTED Jeffrey S. Kross, Oakland, CA, for the petitioner-appellee. J. Michael Lehmann (argued), Corey J. Robins, Office of the Attorney General of the State of California, Los Angeles, CA, for the respondent-appellant. Appeal from the United States District Court for the Central District of California; Virginia A. Phillips, District Judge, Presiding. D.C. No. CV-00-00527-VAP. Before FERGUSON, TASHIMA, and Graber, Circuit Judges. Opinion by Judge FERGUSON; Dissent by Judge GRABER. OPINION FERGUSON, Circuit Judge: 1 Warden William A. Duncan ("the State") appeals the District Court's conditional grant of Defendant/Petitioner Gary Bradley's ("Bradley") 28 U.S.C. § 2254 petition for a writ of habeas corpus challenging his conviction on the grounds that the state trial court's refusal to instruct the jury on the defense of entrapment violated his federal due process rights. The District Court adopted the recommendations of the Magistrate Judge,…